OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

February 22,200l 

The Honorable Jeff Wentworth 

Chair, Committee on Redistricting 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 787 1 l-2068 

Opinion No. JC-0347 

Re: Whether section 143.006(b) of the Texas 

Local Government Code authorizes a 

municipality’s chief executive officer to appoint 

a person to fill the position of a member of the 

Fire Fighters’ and Police Officers’ Civil Service 

Commission whose term has expired, and related 

questions (RQ-0294-JC) 

Dear Senator Wentworth: 

Your predecessor as chair of the Committee on Redistricting, Senator Gallegos, asked this 

office a series of questions concerning section 143.006 of the Local Government Code, especially 

with respect to the issue of appointments to the Fire Fighters’ and Police Officers’ Civil Service 

Commission. We conclude that the end of a term is not a “vacancy” for the purposes of that statute, 

and further that the power to nominate a member to such a cornmission is given to the chief 

executive of the municipality, not to its governing body. Questions concerning the criminal 

provisions of the statute would require considerations of facts and circumstances of a sort in which 

this office does not engage in the opinion process, and accordingly we cannot answer them. 

Section 143.006(b), which is central to your predecessor’s concern, reads as follows: 

The commission consists of three members appointed by the 

municipality’s chief executive and confirmed by the governing body 

of the municipality. Members serve staggered three-year terms with 

the term of one member expiring each year. If a vacancy occurs or 

if an appointee fails to qualify within ten days after the date of 

appointment, the chief executive shall appoint a person to serve for 

the remainder of the unexpired term in the same manner as the 

original appointment. 

TEX. Lot. GOV'T CODE ANN. 0 143.006(b) (Vernon 1999) (emphasis added). 
The Honorable Jeff Wentworth - Page 2 (JC-0347) 

Your predecessor asked first whether the expiration of a term is “considered a vacancy in the 

sense expressed by this section.“’ In our view it is not. A “vacancy” in this context clearly occurs 

during, and not at the end of, a term of office. Otherwise the provision that “the chief executive shall 

appoint a person to serve for the remainder of the unexpired term” would be meaningless. See TEX. 

GOV’T CODE ANN. 6 311.021(2) (Vernon 1998) (p resumption that entire statute is intended to be 

effective). 

Section 3 of article 1269m, Revised Civil Statutes, the pre-codification source law, is to the 

same effect. “Any such vacancies in said Commission, caused by death, resignation, or otherwise, 

or by failure of any appointee to qualify within ten (10) days after appointment, shall be filled in the 

manner hereinafter specified . . . .” See Act of May 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex. 

Gen. Laws 550,55 1. This language makes it even more clear that the concern of the legislature was 

with filling vacancies within a term, such as might be caused by “death, resignation, or otherwise.“* 

The second question asked is whether, if “vacancy” includes the expiration of a term, “the 

appointment of another member to the commission need[s] confirmation by the governing body.” 

Request Letter, supra note 1, at 1. As we noted above, “vacancy” is not to be so construed. 

Accordingly, we do not answer this question. 

Your predecessor next questions whether the governing body of the municipality, by itself, 

may appoint commission members. While the statute gives the power of confirmation to the 

governing body, with equal clarity it gives the power to nominate to the chief executive. Nothing 

in the statutory language suggests that the governing body may usurp what the request letter refers 

to as “the right or responsibility to appoint commission members without consent or approval of the 

chief executive.” Id. 

A letter on this issue from the Mayor Pro Tempore of the City of South Houston draws our 

attention to a city ordinance, section 2-3(c)(2) of the Code of Ordinances, which provides that the 

mayor shall make vacancy appointments “not later than the second regular meeting of the city 

council after the vacancy occurs,” and that in the event “the mayor fails or refuses to do so, the city 

council shall make such appointment[s] . . . .“3 However, a municipal ordinance, even if enacted by 

a home rule city, is subordinate to a statute such as section 143.006. See TEX. CONST. art. 11, 8 5 

(“no charter or any ordinance passed under said charter shall contain any provision inconsistent with 

‘Letter from Honorable Mario Gallegos, Jr., State Senator, to Honorable John Comyn, Attorney General of 

Texas at 1 (Oct. 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter]. 

‘Pursuant to the Code Construction Act, TEX. GOV’T CODE ANN. 5 3 11.023 (Vernon 1998), prior law may be 

considered as an aid to construction, so long as it is not “used to alter or disregard the express terms of a code 

provision.” Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). In this instance there is no 

substantive difference between the prior law and the code. 

3Letter from Eloise Smith, Mayor Pro Tempore, City of South Houston, to Office of the Texas Attorney 

General (Dec. 11,200O) (on file with Opinion Committee) [hereinafter Smith Letter]. 
The Honorable Jeff Wentworth - Page 3 (JC-0347) 

. . . the general laws enacted by the Legislature of this State”). The City of South Houston is, we are 

informed, “a Type A General Law City.” Smith Letter, supra note 3, at 1. As such its authority is 

yet more limited than that of a home rule city. “[Ml unicipalities have no inherent right of selfgovernment which is beyond the legislative control of the state. . . .” 52 TEX. JUR. 3D MunicipaZ 

Corporations 5 136 (1999). Accordingly, the provisions of the city’s ordinance may not contravene 

the statutory scheme. 

The final two questions concern another provision of the statute, section 143.006(h), which 

reads: 

The chief executive of a municipality or a municipal official 

commits an offense if the person knowingly or intentionally refuses 

to implement this chapter or attempts to obstruct the enforcement of 

this chapter. An offense under this subsection is a misdemeanor 

punishable by a fine of not less than $100 or more than $200. 

TEX. Lot. GOV’T CODE ANN. 5 143.006(h) (Vernon 1999). 

We are asked, in relation to this statute, how many times a municipality’s governing body 

may refuse to confirm the chief executive’s appointment, and “[wlhen are these refusals considered 

a violation” of section 143.006(h). Request Letter, supra note 1, at 1. We note first that the statute 

is silent as to this question. It sets no particular limits in this regard. Further, a confirmation, like 

an appointment, would appear to be discretionary rather than ministerial. See Tex. Att’y Gen. Op. 

No. JC-0140 (1999) at 3 (appointment of constable to fill vacancy is discretionary, and mandamus 

will not lie against commissioners court to compel appointment). “An act is ministerial when the 

law clearly spells out the duty to be performed by the official with sufficient certainty that nothing 

is left to the exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791,793 (Tex. 

1991). If confirmation by the city council were merely ministerial, it would be supererogatory. 

Finally, as to what would constitute sufficient evidence that either the chief executive or any 

other municipal official was “knowingly or intentionally rems[ing] to implement . . . or attempt[ing] 

to obstruct the enforcement of’ this statute, such a determination would require fact-finding of the 

type in which we cannot engage in the opinion process. 
The Honorable Jeff Wentworth - Page 4 (JC-0347) 

SUMMARY 

A “vacancy” on the Fire Fighters’ and Police Officers’ Civil Service 

Commission, for the purposes of section 143.006 of the Texas Local 

Government Code, does not occur upon the expiration of a member’s term. 

The appointment of another member by a municipality’s chief executive 

requires confirmation by its governing body. However, the governing body 

has no independent power to appoint such members. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General - Opinion Committee